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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, Chester, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Thursday, July 15, 2010

2d Circuit rejects Title VII disparate treatment claim

One way to prove employment discrimination is with evidence that you were fired for doing something that others got away with. Disparate treatment allows the jury to find you were terminated under circumstances creating an inference of discrimination.

The case is Ruiz v. County of Rockland, decided on June 25. It's been a while since the Second Circuit parsed out a discrimination claim alleging that the plaintiff was treated differently than co-workers. While this particular case is fact-intensive, we ought to sit up and take notice how the Second Circuit (Pooler, Calabresi and Kahn [D.J.]) handles this set of issues. It could be quite some time before we are treated to this kind of extended analysis.

Ruiz is an Hispanic male who worked for the Rockland County Department of Mental Health as a low-level supervisor. The case is tricky because Ruiz was charged with sexual harassment and he lodged cross-accusations against his colleagues, all of them identified by their initials because of the sensitive allegations. You need a scorecard to keep track of all the allegations.

In the end, Ruiz was found guilty after a Section 75 disciplinary hearing of failure to report his knowledge that co-workers had engaged in inappropriate sexual behavior with patients. He was exonerated on a rape charge lodged by a patient. The hearing officer did find that, while he was guilty of not reporting certain misconduct, that misconduct was known throughout the facility and Ruiz was singled out for this. As Ruiz was singled out, the hearing officer recommended against terminating Ruiz's employment. But the Commissioner, who has final say on discipline, overruled the hearing officer's finding that sexual misconduct was known throughout the facility and that Ruiz was singled out. The Commissioner fired Ruiz.

Ruiz argues that he treated differently than non-Hispanic employees who engaged in comparable sex-related misconduct. The Court of Appeals disagrees. You have to show that the co-workers were "similarly-situated in all material respects." This loose standard is difficult to apply, since few co-workers are exactly alike in job duties and misconduct. In this case, one comparator doesn't count because she resigned after being accused of sexual misconduct. Another comparator -- who, like Ruiz, allegedly knew about the misconduct but was not disciplined -- didn't admit to any misconduct to which Ruiz did admit, and this comparator did not have Ruiz's credibility problems at the Section 75 hearing. Ruiz also knew about more misconduct than comparator No. 2 did. A third comparator had limited knowledge of misconduct and she did, unlike Ruiz, report that misconduct between staff and patients.

Ruiz is also distinguishable from the others because he was accused to sexual harassment and rape. While he was exonerated at the Section 75 hearing over these allegations, "the fact that Mr. Ruiz had been accused by multiple patients and co-workers of inappropriate and unlawful behavior clearly distinguishes Mr. Ruiz from other employees who were not the subject of such accusations. While Mr. Ruiz may be able to show that the real reason he was terminated was because Commissioner Walsh-Tozer believed these other allegations to be true, he has provided no evidence to suggest that she was motivated by Mr. Ruiz’s race and national origin."